Judicial Process and Judicial Policymaking » (5th Edition)

G. Alan Tarr received his doctorate from the University of Chicago. He is a distinguished professor of political science and director of the Center for State Constitutional Studies at Rutgers University, Camden. Professor Tarr has served as a constitutional consultant in Russia, South Africa, Cyprus, and Burma. A three time NEH Fellow, he is currently completing a study of judicial independence and accountability in the American states.

An excellent introduction to judicial politics as a method of analysis, JUDICIAL PROCESS AND JUDICIAL POLICYMAKING, Fifth Edition focuses on policy in the judicial process. Rather than limiting the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government, and weaves four major premises throughout the text: 1) Courts in the U.S. have always played an important role in governing and that their role has increased in recent decades; 2) Judicial policymaking is a distinctive activity; 3) Courts make policy in a variety of ways; and 4) Courts may be the objects of public policy, as well as creators.

Preface xv

1 Courts and Law 1

Legal Systems 3

The Common-Law Legal Family 4

The Civil-Law Legal Family 6

Civil Law versus Common Law 7

Law 8

Private Law and Public Law 8

Criminal Law and Civil Law 10

Substantive Law and Procedural Law 10

Law and Equity 11

Common Misconceptions about Law and Courts 12

Law and Uncertainty 12

Courts, Law, and Public Policy 13

Conclusions 15

Notes 16

Part I Structures and Participants in the Judicial Process 21

2 The Federal and State Court Systems 23

The Federal Court System 25

Structure 25

The Development of the Federal Judicial System 27

Federal Jurisdiction 28

The Federal Courts Today 32

The District Courts 32

The Courts of Appeals 35

The United States Supreme Court 37

State Courts 37

The Structure of State Court Systems 39

The Development of State Court Systems 41

Conclusions 43

Notes 44

3 Judges 48

What Sort of Judges Do We Want? 51

Judicial Independence versus Accountability 51

Representativeness 51

Judicial Selection in the States 52

Modes of Judicial Selection 52

The Politics of Judicial Elections 56

The Politics of Merit Selection 59

What Effect Do Judicial Selection Systems Have? 61

Who Are the State Judges? 62

The Selection of Federal Judges 63

The Size of the Federal Judiciary 64

The Selection of District Court and Appeals Court Judges 65

Selection of Lower Court Judges from Carter to George W. Bush 67

The Selection of Supreme Court Justices 71

Criteria for Selection 71

Obstacles to Presidential Influence 75

What Do Judges Do? 76

From Advocate to Arbiter 76

The Work of the Trial Judge 79

The Work of the Appellate Judge 80

Conclusions82

Notes 83

4 Lawyers 88

The Trouble with Lawyers 90

The Legal Profession 92

Becoming a Lawyer 92

A Portrait of the Legal Profession 97

The Organization of the Legal Profession 99

Practicing Law 101

An Overview of Legal Practice 101

Current Types of Legal Practice 101

The Divided Legal Profession 105

Access to Legal Services 106

Criminal Justice 106

Civil Law 108

Lawyers and Clients 112

The Transformation of the American Legal Profession 114

Notes 115

Part II Judicial Process and Judicial Decision Making 121

5 Trials and Appeals 123

An Overview of the Chapter 125

Trials 126

Disputes and Fact Finding 126

The Diversity of Trials 127

Rights at Trial 128

The Trial Process 130

The Jury in the United States 137

The Changing Jury 137

Jury Size and Jury Decision Making 138

Evaluating the Jury 139

Appeals 141

The Appellate Process 141

The U.S. Supreme Court 142

Other Appellate Courts 151

Beyond Trials and Appeals 152

Notes 153

6 Criminal Justice and the Courts 157

Prosecutors and Defense Attorneys 158

Prosecutors 158

Defense Attorneys 159

The Process of Criminal Justice 160

Crime and Arrest 160

Charges and Dismissals 163

Bail and Pretrial Release 165

Preliminary Hearings and Grand Juries 166

Plea Bargaining 168

The Process of Plea Bargaining 168

Why Plea Bargaining Occurs 171

Attacks on Plea Bargaining 173

Evaluating Plea Bargaining 174

Policy Issues in Criminal Justice 176

The Exclusionary Rule 177

The Insanity Defense 181

Crime and Punishment: Sentencing 183

Crime and Punishment: Drug Courts 187

Conclusions 189

Notes 191

7 Civil Justice and the Courts 198

How Cases Arise 201

Injuries and Grievances 202

Responses 202

Rules and Processes 204

Rules 204

The Process of Civil Litigation 205

Civil Cases and Their Outcomes 208

The Universe of Cases 208

Outcomes of Civil Cases 211

A Litigation Crisis? 213

The Indictment 213

Is the United States a Litigious Society? 214

Is There a Better Way? 217

Alternatives in Dispute Resolutions 217

Does ADR Work? 219

Conclusions 221

Notes 222

8 Judicial Decision Making 227

The Legal Perspective 229

The Phases of Judicial Decision Making 229

The Tools of Judicial Decision Making 229

Legal Reasoning as Deductive Reasoning 234

Legal Reasoning as Reasoning by Example 235

Implications 238

The Political Perspective 239

Attitudes 241

Judicial Role Orientations 244

Institutional Factors 245

A Third Perspective 246

Analyzing the Perspectives 248

Notes 249

Part III Judicial Policymaking 253

9 Judicial Policymaking: An Introduction 255

The Occasions of Judicial Policymaking 256

Judicial Review and Constitutional Policymaking 256

Remedial Policymaking 260

Statutory Interpretation and Judicial Policymaking 261

Oversight of Administrative Activity and Judicial Policymaking 263

The Common Law and Judicial Policymaking 264

Cumulative Policymaking 265

The Incidence of Judicial Policymaking 267

The Level of Judicial Policymaking 267

Historical Shifts in Judicial Policymaking 267

The Agenda of Judicial Policymaking 268

Assessing Judicial Policymaking 269

Criteria for Evaluation 269

Judicial Capacity and Policy Effectiveness 270

Legitimacy 273

Conclusions 275

Notes 276

10 Federal Court Policymaking 280

School Desegregation 280

The Road to Brown 281

Brown I and Brown II 282

The Response to Brown, 1954 to 1964 284

School Desegregation, 1964 to 1971 285

The Courts and School Desegregation, 1971 to 2009 287

The Legacy of Brown 290

Abortion 291

Abortion Becomes a Legal Issue 291

Roe v. Wade 294

The Response to Roe 296

The Effects of Roe 298

Brown, Roe, and Beyond 299

The Development of Legal Issues 299

Policy Change 300

Legal Obligation 301

Policy Effectiveness 303

Notes 305

11 State Court Policymaking 311

School Finance 311

The Development of School Finance Litigation 312

The Broader Context of State Constitutional Policymaking 318

The Tort Law Revolution and Product Liability Law 321

The Changing Face of Product Liability Law 322

The Consequences of Policy Change 328

Responses to the Product Liability "Crisis" 332

Conclusions 333

Notes 334

Further Reading 340

Index 351